G.R. No.

198889, January 20, 2016

UFC PHILIPPINES, INC. (NOW MERGED WITH NUTRI-ASIA, INC., WITH

NUTRI-ASIA, INC. AS THE SURVIVING ENTITY), Petitioner, v. FIESTA
BARRIO MANUFACTURING CORPORATION, Respondent.

DECISION

LEONARDO-DE CASTRO, J.:

For our disposition is a petition for review on certiorari under Rule 45 seeking to

annul and set aside the June 23, 2011 Decision1 and the October 4,
2011 Resolution2 of the Court of Appeals in CA-G.R. SP No. 107570, which
reversed and set aside the March 26, 2008 Decision3 of the Bureau of Legal Affairs
of the Intellectual Property Office (IPO-BLA) and the January 29, 2009 Decision4 of
the Director General of the IPO. Petitioner Nutri-Asia, Inc. (petitioner) is a
corporation duly organized and existing under Philippine laws.5 It is the emergent
entity in a merger with UFC Philippines, Inc. that was completed on February 11,
2009.6 Respondent Barrio Fiesta Manufacturing Corporation (respondent) is likewise
a corporation organized and existing under Philippine laws.

On April 4, 2002, respondent filed Application No. 4-2002-002757 for the mark
"PAPA BOY & DEVICE" for goods under Class 30, specifically for "lechon
sauce."7 The Intellectual Property Office (IPO) published said application for
opposition in the IP Phil. e-Gazette released on September 8, 2006. The mark
appears as follows:

(Please see image G.R. No. 198889 pg. 2)

On December 11, 2006, petitioner filed with the IPO-BLA a Verified Notice of
Opposition to the above-mentioned application and alleged that:

1. The mark "PAPA" for use on banana catsup and other similar goods
was first used [in] 1954 by Neri Papa, and thus, was taken from his
surname;

2. After using the mark "PAPA" for about twenty-seven (27) years, Neri
Papa subsequently assigned the mark "PAPA" to Hernan D. Reyes who,
on September 17, 1981, filed an application to register said mark
"PAPA" for use on banana catsup, chili sauce, achara, banana chips,
and instant ube powder;

3. On August 14, 1983, Hernan D. Reyes was issued Certificate of

Registration No. 32416;

4. [Certificate of] Registration No. 32416 was subsequently assigned to

the following in successive fashion: Acres & Acres Food, Inc.,
 Southeast Asia Food, Inc., Heinz-UFC Philippines, Inc., and Opposer
UFC Philippines, Inc.;

5. Last October 28, 2005, Heinz-UFC Philippines, Inc. filed Application

Serial No. 4-2005-010788 which, in effect, is a re- registration of
Registration No. 32416 which expired on August 11, 2003;

6. Hernan D. Reyes also filed on March 04, 1982 an application to

register in the Supplemental Register the "PAPA BANANA CATSUP
Label";

7. On August 11, 1983, Hernan D. Reyes was issued Certificate of

Registration No. SR-6282 which was subsequently assigned to Acres &
Acres Food, Inc., Southeast Asia Food, Inc., Heinz-UFC Philippines,
Inc.;

8. After its expiration, Opposer filed on November 15, 2006 Trademark

Application Serial No. 4-2006-012346 for the re-registration of the
"PAPA Label Design";

9. The mark "PAPA KETSARAP" for use on banana sauce falling under
Class 30 was also registered in favor of Acres & Acres Food, Inc. under
Registration No. 34681 issued on August 23, 1985 and renewed last
August 23, 2005 by Heinz-UFC Philippines, Inc. for ten (10) years;

10. On November 07, 2006, Registration No. 34681 was assigned to

Opposer;

11. Opposer has not abandoned the use of the mark "PAPA" and the
variations thereof as Opposer has continued their use up to the
present;

12. The mark "PAPA BOY & DEVICE" is identical to the mark "PAPA"
owned by Opposer and duly registered in its favor, particularly the
dominant feature thereof;

13. [With the] dominant feature of respondent-applicant's mark

"PAPA BOY & DEVICE", which is Opposer's "PAPA" and the variations
thereof, confusion and deception is likely to result: The consuming
public, particularly the unwary customers, will be deceived, confused,
and mistaken into believing that respondent-applicant's goods come
from Opposer or are authorized by Opposer to Opposer's prejudice,
which is particularly true considering that Opposer's sister company,
Southeast Asia Food, Inc., and its predecessors-in-interest have been
major manufacturers and distributors of lechon sauce and other table
sauces since 1965 under its registered mark "Mang Tomas";

14. Respondent-applicant's mark "PAPA BOY & DEVICE" which

nearly resembles Opposer's mark "PAPA" and the variations thereof
 will impress upon the gullible or unsuspecting public that it is the same
or related to Opposer as to source because its dominant part is the
same as Opposer's mark and, thus, will likely be mistaken to be the
mark, or related to, or a derivative or variation of, Opposer's mark;

15. The goods covered by respondent-applicant's application fall

under Class 30, the same Class under which Opposer's goods
enumerated in its earlier issued registrations;

16. The test of dominancy is now explicitly incorporated into law in

Section 155.1 of the IP Code which defines infringement as the
colorable imitation of a registered mark or a dominant feature thereof,
and is provided for by jurisprudence;

17. As a corporation also engaged in the food business,

Respondent- applicant knew and/or ought to know that Opposer and
its predecessors-in-interest have been using the mark "PAPA" and the
variations thereof for the last fifty-two (52) years while its sister
company is engaged in the business of manufacturing and distributing
"lechon sauce" and other table sauces for the last forty-one (41)
years;

18. The approval of the subject application will violate Opposer's

right to the exclusive use of its registered mark "PAPA" and the
variations thereof per Section 13 8 of the IP Code;

19. The approval of the subject application has caused and will
continue to cause great and irreparable damage and injury to
Opposer;

20. Respondent-applicant filed the subject application fraudulently

and in bad faith; and

21. Respondent-applicant is not entitled to register the subject mark

in its favor.8

In its verified opposition before the IPO, petitioner contended that "PAPA BOY &
DEVICE" is confusingly similar with its "PAPA" marks inasmuch as the former
incorporates the term "PAPA," which is the dominant feature of petitioner's "PAPA"
marks. Petitioner averred that respondent's use of "PAPA BOY & DEVICE" mark for
its lechon sauce product, if allowed, would likely lead the consuming public to
believe that said lechon sauce product originates from or is authorized by
petitioner, and that the "PAPA BOY & DEVICE" mark is a variation or derivative of
petitioner's "PAPA" marks. Petitioner argued that this was especially true
considering that petitioner's ketchup product and respondent's lechon sauce
product are related articles that fall under the same Class 30.9 chanroblesvirtuallawlibrary

Petitioner alleged that the registration of respondent's challenged mark was also
likely to damage the petitioner, considering that its former sister company,
Southeast Asia Food, Inc., and the latter's predecessors-in-interest, had been major
manufacturers and distributors of lechon and other table sauces since 1965, such
as products employing the registered "Mang Tomas" mark.

In its Verified Answer, respondent argued that there is no likelihood of confusion

between petitioner's family of "PAPA" trademarks and respondent's "PAPA BOY &
DEVICE" trademark. Respondent raised affirmative defenses and we quote the
relevant ones below:

3. Opposer cites several of its following marks in support of its opposition to the
application but an examination of said marks [reveals] that these have already
expired and/or that no confusing similarity exists x xx;

4. Assuming that the mark "PAPA KETSARAP" had been timely renewed on August
23, 2005 for "banana sauce" under Class 30, the same is not a hindrance to the
successful registration of the mark "PAPA BOY & DEVICE": Jurisprudence provides
that a certificate of registration confers upon the trademark owner the exclusive
right to use its own symbol only to those goods specified in the certificate subject to
the conditions and limitations stated therein;

5. As a result, Opposer's right to use the mark "PAPAKETSARAP" is limited to the

products covered by its certificate of registration which is Class 30 for banana
sauce;

6. Contrary to Opposer's belief, the dominant features of Respondent-applicant's

mark "PAPA BOY & DEVICE" are the words "PAPA BOY" and the representation of a
smiling hog-like character gesturing the thumbs-up sign and wearing a traditional
Filipino hat and scarf while the dominant feature of Opposer's mark "PAPA
KETSARAP" are the words "Papa" and "Ketsarap", not the word "Papa"; and the
word "Ketsarap " is more prominently printed and displayed in the foreground than
the word "Papa" for which reasons opposer's reference to the Dominancy Test fails;

7. Opposer's allegation that the registration of Respondent-applicant's mark "PAPA

BOY & DEVICE" will damage and prejudice the mark "MANG TOMAS" is irrelevant
considering that Opposer's basis for filing this opposition is the alleged confusing
similarity between Respondent-applicant's mark and Opposer's mark "PAPA
KETSARAP", not the mark "MANG TOMAS";

8. Respondent-applicant's mark "PAPA BOY & DEVICE" is neither identical nor

confusingly similar to Opposer's mark "PAPA KETSARAP": Respondent-applicant's
mark "PAPABOY & DEVICE" is an arbitrary mark which differs in overall sound,
spelling, meaning, style, configuration, presentation, and appearance from
Opposer's mark "PAPA KETSARAP";

9. The dissimilarities between the marks are so distinct, thus, confusion is very
unlikely: While Opposer's mark is a plain word mark, Respondent-applicant's mark
"PAPA BOY & DEVICE" is much more intricate and distinctive such as Opposer's
mark not having the words "Lechon Sauce" printed inside a blue ribbon-like device
which is illustrated below the words "PAPA BOY", Opposer's mark not having a
prominent smiling hog-like character gesturing a thumbs-up sign and wearing a
Filipino hat and scarf stands beside the words "PAPA BOY", and Opposer's mark not
having the words "Barrio Fiesta" albeit conspicuously displayed above the mark, all
which leave no doubt in the consumer's mind on the product that he is purchasing;

10. Aside from the fact that Respondent-applicant's mark "PAPA BOY & DEVICE" is
distinct and different in appearance, spelling, sound, meaning, and style from
Opposer's mark "PAPA KETSARAP", the difference in the goods covered by both
marks is obvious: Since the goods covered by Respondent-applicant's mark is
unrelated and non- competing to those covered by Opposer's mark, the doctrine
allowing the registrations of marks covering unrelated and non-competing goods as
enunciated by the Supreme Court is therefore applicable in this case;

11. Respondent-applicant's mark cannot be confusingly similar to Opposer's mark

considering that the products covered by these marks are different: While
Respondent-applicant's mark "PAPA BOY & DEVICE" covers lechon sauce under
Class 30, Opposer's mark "PAPA KETSARAP" covers banana sauce;

12. If a consumer is in the market for banana sauce, he will not buy lechon sauce
and vice-versa and as a result, the margin of error in the acquisition of one from
the other is simply remote;

13. Respondent-applicant is the exclusive owner of the mark "PAPA BOY & DEVICE"
for lechon sauce under Class 30: The words "PAPA BOY" is a combination of the
nickname of Bonifacio Ongpauco who is one of Respondent-applicant's incorporators
and founders- "BOY"- and the word "PAPA" as Bonifacio Ongpauco's mother, Sixta
P. Evangelista, had been fondly known as "Mama Chit", making Respondent-
applicant the prior adopter, user, and applicant of the mark "PAPA BOY & DEVICE"
in the Philippines;

14. To protect its ownership over the mark "PAPA BOY & DEVICE" considering that
it is the first to adopt and use said mark, Respondent-applicant applied for its
registration under Application Serial No. 4-2002-002757 for Class 30, and said
application was found registrable by the Examiner as a consequence of which the
same was recommended for allowance after undergoing a thorough process of
examination, which recommendation was then approved by the Director of the
Bureau of Trademarks (BOT);

15. Respondent-applicant's mark "PAPA BOY & DEVICE" has been commercially
used in the Philippines;

16. Respondent-applicant's mark "PAPA BOY & DEVICE" has been promoted and
advertised for a considerable duration of time and over wide geographical areas:
Respondent-applicant has invested tremendous amount of resources in the
promotion of its mark "PAPA BOY & DEVICE" through various media including print
publications and promotional materials;
17. The widespread local commercial use of the subject mark by Respondent-
applicant to distinguish and identify its various high-quality consumer products has
earned Respondent-applicant a well-deserved business reputation and goodwill;

18. Respondent-applicant's mark is distinctive and capable of identifying its goods

and distinguishing them from those offered for sale by others in the market
including Opposer's goods for which reason no confusion will result because
Respondent-applicant's mark is for lechon sauce while Opposer's mark is for banana
sauce; and

19. The presence of a common prefix "PAPA" in the marks of both parties does not
render said marks identical or confusingly similar: Opposer cannot exclusively
appropriate said prefix considering that other marks such as "Papa Heinz Pizza",
"Papa Heinz Sausage", "Papa Beaver", "Papa Pop", "Pizza Papa John's & Design",
"Papadoods", and "Papa in Wine and Device" are valid and active.10 chanrobleslaw

Petitioner's mark and its variations appear as follows:

1. 1. "PAPA" under Registration No. 32416 for Class 29 goods;11

(Please see image G.R. No. 198889 page 7.)

2. The mark "PAPA" as it appeared upon re-registration of Certificate No.

32416, under Application No. 4-2005-010788 for Classes 29 and 30 goods;12

(Please see image G.R. No. 198889 page 7.)

3. "PAPA LABEL DESIGN" under Registration No. 4-2006-012364;13 and

(Please see image G.R. No. 198889 page 7.)

4. "PAPA KETSARAP" under Certificate of Registration No. 34681, for banana

sauce (Class 30).14

(Please see image G.R. No. 198889 page 8.)

PROCEEDINGS BEFORE THE INTELLECTUAL PROPERTY OFFICE

The case was referred to mediation but the parties failed to arrive at an amicable
settlement. The case was thus set for preliminary conference. Subsequently, the
IPO-BLA directed the parties to file their respective position papers and draft
decisions.

The IPO-BLA rendered a Decision on March 26, 2008 sustaining petitioner's

Opposition and rejecting respondent's application for "PAPA BOY &
DEVICE." The fallo of said decision reads as follows:

WHEREFORE, the VERIFIED NOTICE OF OPPOSITION filed by UFC Philippines, Inc.

is, as it is hereby, SUSTAINED. Consequently, Application Serial No. 4-2002-
002757 for the mark "PAPA BOY & DEVICE" for lechon sauce under Class 30 filed on
April 04, 2002 by Barrio Fiesta Manufacturing Corporation, is, as it is hereby,
REJECTED. Let the file wrapper of PAPA BOY & Device subject matter of this case be
forwarded to the Bureau of Trademarks (BOT) for appropriate action in accordance
with this Decision.15
chanrobleslaw

Respondent filed an appeal before the IPO Director General, who found it
unmeritorious, and disposed of the case in the following manner:

WHEREFORE, the instant appeal is hereby DISMISSED. Let a copy of this Decision
as well as the trademark application and records be furnished and returned to the
Director of the Bureau of Legal Affairs for appropriate action. Further, let also the
Director of the Bureau of Trademarks and the library of the Documentation,
Information and Technology Transfer Bureau be furnished a copy of this Decision
for information, guidance, and records purposes."16

DECISION OF THE COURT OF APPEALS

Respondent then filed a petition with the Court of Appeals, questioning the above
decision of the IPO Director General that affirmed the decision of the IPO Bureau of
Legal Affairs Director, which disallowed respondent's application for trademark
registration. Respondent's arguments before the Court of Appeals are quoted
below:

A.

REGISTRATION NOS. 32416 AND 42005010788 ISSUED FOR THE "PAPA" MARK
AND REGISTRATION NOS. SR-6282 AND 42006012364 ISSUED FOR THE
TRADEMARK "PAPA BANANA CATSUP LABEL/PAPA LABEL DESIGN" SHOULD NOT BE
USED AS BASIS IN DETERMINING THE EXISTENCE OF CONFUSING SIMILARITY.

B.
THERE IS NO CONFUSING SIMILARITY BETWEEN PETITIONER-APPLICANT'S "PAPA
BOY & DEVICE" AND RESPONDENT'S "PAPA KETSARAP" MARK.

C.

PETITIONER-APPLICANT IS ENTITLED TO THE REGISTRATION OF THE MARK "PAPA

BOY & DEVICE."

D.

THE OPPOSITION STATES NO CAUSE OF ACTION, AND HENCE, SHOULD BE DENIED

OUTRIGHT.17 chanrobleslaw

As regards the first ground, the Court of Appeals held:

Records show that respondent UFC has Certificates of Registration for the
trademarks PAPA, PAPA BANANA CATSUP label and PAPA KETSARAP. A closer look
at the respective Certificate[s] of Registration of the aforementioned marks,
however, reveals that at the time the trademark application of petitioner was
published in the IPO e-Gazette on September 8, 2006, the duration of the
trademark registration of respondent over the marks PAPA and PAPA BANANA
CATSUP have already expired. On the other hand, the mark PAPA KETSARAP
was timely renewed by respondent as shown by the Certificate of Renewal
of Registration issued on September 1, 2006 by the Director of the Bureau
of Trademarks.

Under R.A. No. 8293, as amended by R.A. No. 9150, the duration of a trademark
registration is 10 years, renewable for periods of 10 years each renewal. The
request for renewal must be made within 6 months before or after the expiration of
the registration. Respondent's PAPA mark was not renewed within the period
provided for under RA No. 8293. Its registered term ended on August 11, 2003 but
was reapplied for registration only on April 4, 2005. Meanwhile, the mark PAPA
BANANA CATSUP was registered by respondent only in the Supplemental Register,
hence, was not provided any protection, x x x. It is noted that the PAPA BANANA
CATSUP label was applied for registration on November 15, 2006, over three years
after the expiration of its registration in the Supplemental Register of the Philippine
Patent Office on August 11, 2003. Thus, while petitioner has a point that the
marks PAPA and PAPA BANANA CATSUP have already expired and the
latter having been afforded no protection at all and should not be
juxtaposed with petitioner's trademark, respondent can still use the marks
PAPA KETSARAP and PAPA BANANA CATSUP, it appearing that the
Intellectual Property Office issued a Certificate of Registration No. 4-2006-
012364 for the latter on April 30, 2007, to bar the registration of
petitioner's "PAPA BOY & DEVICE" mark.18 (Emphases supplied, citations
omitted.)
Anent the second ground, the Court of Appeals ruled in the following manner:

After taking into account the aforementioned doctrines and the factual
circumstances of the case at bar, this Court, after considering the
trademarks involved as a whole, is of the view that petitioner's trademark
"PAPA BOY & DEVICE" is not confusingly similar to respondent's "PAPA
KETSARAP" and "PAPA BANANA CATSUP" trademark. Petitioner's trademark
is "PAPA BOY" as a whole as opposed to respondent's "PAPA". Although on its label
the word "PAPA" is prominent, the trademark should be taken as a whole and not
piecemeal. The difference between the two marks are conspicuous and noticeable.
While respondent's products are both labeled as banana sauces, that of petitioner
Barrio Fiesta is labeled as lechon sauce.

Moreover, it appears on the label of petitioner's product that the said lechon sauce
is manufactured by Barrio Fiesta thus, clearly informing the public [of) the identity
of the manufacturer of the lechon sauce. As claimed by respondent, its products
have been in commercial use for decades. It is safe to assume then that the
consumers are already aware that "PAPA KETSARAP" and "PAPA BANANA CATSUP"
are products of UFC and not of petitioner or the other way around. In addition, as
correctly pointed out by petitioner, if a consumer is in the market for banana sauce,
he will not buy lechon sauce and vice-versa because aside from the fact that the
labels of both parties' products contain the kind of sauce they are marketing, the
color of the products is visibly different. An ordinary consumer is familiar with the
fact that the color of a banana sauce is red while a lechon sauce is dark brown.
There can be no deception as both products are marketed in bottles making the
distinction visible to the eye of the consumer and the likelihood of acquiring a
wrong sauce, remote. Even if the products are placed side by side, the
dissimilarities between the two marks are conspicuous, noticeable and substantial
enough to matter especially in the light of the following variables that must be
factored in.

Lastly, respondent avers that the word "PAPA" was coined after the surname of the
person who first created and made use of the mark. Admittedly, while "PAPA" is a
surname, it is more widely known as a term of endearment for one's father.
Respondent cannot, therefore, claim exclusive ownership over and singular use of
[the] term. Petitioner was able to explain that it adopted the word "PAPA" in parallel
to the nickname of the founder of Barrio fiesta which is "MAMA CHIT". "PAPA BOY"
was derived from the nickname of one of the incorporators of herein petitioner, a
certain Bonifacio Ongpauco, son of Mama Chit.19(Emphasis ours, citation omitted.)

THEORY OF PETITIONER

Thus, petitioner came to this Court, seeking the reversal of the questioned decision
and resolution of the Court of Appeals, and the reinstatement of the decision of the
IPO Director General affirming the decision of the IPO-BLA. Petitioner raises the
following grounds:
 I.

The court a quo erred in applying the "holistic test" to determine whether there is
confusing similarity between the contending marks, and in reversing the IPO-BLA
and the Director General's application of the "dominancy test."

II.

The court a quo erred in holding that there is no likelihood of confusion between the
contending marks given that the "PAPA BOY & DEVICE" mark is used on lechon
sauce, as opposed to ketchup products.

III.

The court a quo erred in holding that Petitioner cannot claim exclusive ownership
and use of the "PAPA" mark for its sauce products because "PAPA" is supposedly a
common term of endearment for one's father.20 chanrobleslaw

Under the first ground, petitioner submitted the following arguments:

1. The findings of administrative agencies, if supported by substantial

evidence, are binding upon the courts.21

Petitioner alleges that the Court of Appeals should have respected the ruling of the
IPO Director General, which was consistent with the ruling of the IPO-BLA and
supported by substantial evidence, instead of substituting its findings of fact for
those of the Director General and the IPO-BLA.

2. The dominancy test should have been applied to determine if there is

confusing similarity between the competing marks.22

Petitioner points out that the Director General and the IPO-BLA found that the
dominant feature of the competing marks is the word "PAPA" and the minor
additions to respondent's "PAPA BOY & DEVICE" mark do not negate likelihood of
confusion caused by the latter's use of the dominant word "PAPA." Petitioner claims
that even compared solely to petitioner's "PAPA KETSARAP" mark (Registration No.
34681), which is conceded to have been timely renewed and to have never expired,
respondent's "PAPA BOY & DEVICE" would still create the likelihood of
confusion.23
chanroblesvirtuallawlibrary

According to petitioner, the Court of Appeals based its decision on Mead Johnson &
Co. v. N.V.J. Van Dorp, Ltd.,24 a case decided almost five decades ago, long before
Republic Act No. 8293 or the 1998 Intellectual Property Code was enforced. Thus,
the Court of Appeals erroneously applied the holistic test since given the nature of
the products bearing the competing marks, the dominancy test should have been
applied.

Petitioner claims that "[k]etchup and lechon sauce are common and inexpensive
household products that are sold in groceries and regularly encountered by the
ordinary or common purchaser who is not expected to examine, scrutinize, and
compare the details of the competing marks."25 cralawred

Petitioner distinguishes this case from Mead Johnson  and claims that the ordinary
purchaser of ketchup or lechon sauce is not likely to closely scrutinize each mark as
a whole, for the latter is "undiscerningly rash" and usually in a hurry, and cannot be
expected to take note of the smiling hog-like character or the blue ribbon-like
device with the words "Lechon Sauce." Petitioner argues that under the Intellectual
Property Code, it is not necessary for one to colorably imitate the competing
trademark as a whole. It is sufficient that one imitates a "dominant feature" of the
mark to constitute trademark infringement.

Petitioner asserts that as the IPO-BLA and the Director General observed that the
ordinary purchaser is most likely to notice the words "PAPA BOY," which, in turn,
may lead him to believe that there is a connection between respondent's lechon
sauce and petitioner's ketchup products.

Under the second ground, petitioner argues that the Court of Appeals seemed to be
unmindful that two kinds of confusion may arise from the use of similar or colorable
imitation marks, i.e., confusion of goods (product confusion) and confusion of
business (source or origin confusion). Petitioner claims that it is reasonable to
assume that it may expand its business to producing lechon sauce, inasmuch as it
already produces food sauce products and its Articles of Incorporation authorizes it
to do so.

Petitioner alleges that the IPO-BLA recognized that confusion of business may arise
from respondent's use of its "PAPA BOY & DEVICE" mark for lechon sauce products,
and that the Director-General agreed with the IPO-BLA's findings on this issue.

Petitioner asserts that ketchup and lechon sauce are undeniably related goods; that
they belong to the same class, i.e., Class 30 of the Nice Classifications; that they
serve practically the same purpose, i.e., to spice up dishes; and that they are sold
in similar bottles in the same shelves in grocery stores. Petitioner argues that the
Court of Appeals had absolutely no basis for stating that a person who is out to buy
ketchup is not likely to buy lechon sauce by mistake, as this analysis allegedly only
applies to "product confusion" and does not consider confusion of business.
Petitioner alleges that "[t]here equally is actionable confusion when a buyer
purchases Respondent's 'PAPA BOY' lechon sauce believing that the said product is
related to or associated with the famous 'PAPA KETSUP' makers." Petitioner further
alleges that "it is reasonable and likely for a consumer to believe that Respondent's
'PAPA BOY' lechon sauce originated from or is otherwise connected with Petitioner's
line of sauces" and that this is "the precise evil that recognition of confusion of
business seeks to prevent."26 chanroblesvirtuallawlibrary

Petitioner avers that "PAPA" is a well-known mark and that it has been in
commercial use as early as 1954 on banana ketchup and similar goods. The "PAPA"
mark is also registered as a trademark and in commercial use in other parts of the
world such as the United States of America and the Middle East. Petitioner claims
that "[bjeing a trademark that is registered and well-known both locally and
internationally, Petitioner's 'PAPA' marks cannot be appropriated by another person
or entity not only with respect to goods similar to those with respect to which it is
registered, but also with respect to goods which are not similar to those for which
the 'PAPA' marks are registered."27 chanroblesvirtuallawlibrary

Under the third ground, petitioner claims that the fact that the word "PAPA" is a
known term of endearment for fathers does not preclude it from being used as a
mark to identify goods. Petitioner claims that their mark falls under a type of mark
known as "arbitrary or fanciful marks," which are "marks that bear no logical
relation to the actual characteristics of the products they represent," are "highly
distinctive and valid," and "are entitled to the greatest protection."28 chanroblesvirtuallawlibrary

Petitioner claims that the mark "PAPA" falls under this class of arbitrary marks,
even if "PAPA" is also a common term of endearment for one's father. Petitioner
states that there is no logical connection between one's father and food sauces,
such as ketchup; thus, with respect to ketchup, food sauces, and their related
products, and for the purpose of identifying its products, petitioner claims exclusive
ownership of the term "PAPA" as an arbitrary mark.

Petitioner alleges that if respondent "has a good faith and proud desire to
unmistakably and distinctly identify its lechon sauce product out in the market, it
should have coined a mark that departs from and is distinguished from those of its
competitors." Petitioner claims that respondent, with full knowledge of the fame
and the decades-long commercial use of petitioner's "PAPA" marks, opted for "PAPA
BOY & DEVICE," which obviously is just a "colorable imitation."29

THEORY OF RESPONDENT

In its Comment,30 respondent claims that petitioner's marks have either expired

and/or "that no confusing similarity exists between them and respondent's "PAPA
BOY & DEVICE' mark." Respondent alleges that under Section 15 of Republic Act
No. 166, a renewal application should be filed within six months before the
expiration of the period or within three months after such expiration. Respondent
avers that the expiration of the 20-year term for the "PAPA" mark under
Registration No. 32416 issued on August 11, 1983 was August 11, 2003. The sixth
month before August 11, 2003 was February 11, 2003 and the third month after
August 11, 2003 was November 11, 2003. Respondent claims that the application
that petitioner filed on October 28, 2005 was almost two years late. Thus, it was
not a renewal application, but could only be considered a new application under the
new Trademark Law, with the filing date reckoned on October 28, 2005. The
registrability of the mark under the new application was examined again, and any
certificate issued for the registration of "PAPA" could not have been a renewal
certificate.

As for petitioner's other mark "PAPA BANANA CATSUP LABEL," respondent claims
that its 20-year term also expired on August 11, 2003 and that petitioner only filed
its application for the new "PAPA LABEL DESIGN" on November 15, 2006. Having
been filed three years beyond the renewal application deadline, petitioner was not
able to renew its application on time, and cannot claim a "continuous existence of
its rights over the 'PAPA BANANA CATSUP LABEL.'" Respondent claims that the two
marks are different from each other and that the registration of one is independent
of the other. Respondent concludes that the certificate of registration issued for
"PAPA LABEL DESIGN" is "not and will never be a renewal certificate."31 chanroblesvirtuallawlibrary

Respondent also avers as follows:

1.3. With regard to the two new registrations of petitioner namely: "PAPA" (Reg.
No. 4-2005-010788) and "PAPA LABEL DESIGN" (Reg. No. 4-2006-012364), these
were filed on October 28, 2005 and November 15, 2006, respectively, under the
Intellectual Property Code (RA 8293), which follows the "first to file" rule, and were
obviously filed later than respondent's "PAPA BOY & DEVICE" mark filed on April 4,
2002. These new marks filed much later than the opposed "PAPA BOY & DEVICE"
mark cannot, therefore, be used as basis for the opposition and should in fact, be
denied outrightly.

xxxx

A search of the Online Trademark Database of Intellectual Property Office (IPO) will
show that only Registration No. 34681 issued for "PAPA KETSARAP" was properly
renewed on August 23, 2005. x x x Clearly, the registrations of "PAPA" and "PAPA
BANANA CATSUP LABEL" marks under registration nos. 32416 and SR-6282
respectively, have already expired when Petitioner filed its opposition proceeding
against Respondent's trademark on December 11, 2006. Having expired, and
therefore, no longer legally existing, the "PAPA" and "PAPA BANANA CATSUP
LABEL" marks CANNOT BAR the registration of respondent's mark. To allow
petitioner's expired marks to prevent respondent's distinct "PAPA BOY & DEVICE"
mark from being registered would be the ultimate absurdity.32 chanrobleslaw

Respondent posits that the Court of Appeals did not err in reversing the decisions of
the administrative agencies, alleging that "[while] it is true that the general rule is
that the factual findings of administrative bodies deserve utmost respect when
supported by evidence, the same is subject to exceptions,"33 and that the Court of
Appeals had justifiable reasons to disregard the factual finding of the IPO. Here, the
Court of Appeals wisely identified certain material facts that were overlooked by the
IPO-BLA and the IPO Director General which it opined, when correctly appreciated,
would alter the result of the case.

Respondent alleges that the IPO-BLA erroneously considered petitioner's marks

"PAPA" and "PAPA BANANA CATSUP LABEL" when it applied the dominancy test in
determining whether petitioner's marks are confusingly similar to those of
respondent's mark "PAPA BOY & DEVICE."

Respondent avers that the IPO-BLA absurdly took emphasis on the mark "PAPA" to
arrive at its decision and did not take into consideration that petitioner's mark was
already expired when respondent applied for the registration of its "PAPA BOY &
DEVICE" mark. Respondent compares its "PAPA BOY & DEVICE" with the only mark
that respondent allegedly has, "PAPA KETSARAP," and found no confusing similarity
between the two.

We quote below respondent's discussion of its application of the dominancy test to

the marks in question:

Applying the Dominancy test, as correctly emphasized by the Court of Appeals, the
dominant feature in respondent's mark is "PAPA BOY" and not "PAPA". It can be
gleaned from respondent's mark that the word "PAPA" was written in the same
font, style and color as the word "BOY". There is also the presence of a "smiling
hog-like character" which is positioned very prominently, both in size and location
in said mark, at glance (sic) even more dominant than the word "PAPA BOY".

xxxx

On the other hand, the dominant feature in petitioner's mark is "KETSARAP", not
"PAPA". Even an ordinary examiner could observe that the word "KETSARAP" in
petitioner's mark is more prominently printed than the word "PAPA".

xxxx

In a dominancy test, the prominent feature of the competing trademarks must be

similar to cause confusion or deception, x x x.

Verily, respondent's dominant feature "PAPA BOY" and the smiling hog-like
character and petitioner's dominant feature "KETSARAP", being the word written in
a larger font, are neither confusing nor deceiving to the public. In fact, the
differences between their dominant marks are very noticeable and conspicuous to
every purchaser.

Furthermore, the Supreme Court in Societe des Produits Nestle, S.A. v. Dy [641
Phil. 345], applied the dominancy test by taking into account the aural effects of
the words and letters contained in the marks in determining the issue of confusing
similarity. Obviously, petitioners' "PAPA KETSARAP" mark does not in any way
sounds (sic) like respondent's "PAPA BOY" mark. The common prefix "PAPA" does
not render the marks aurally the same. As discussed above, the dominant feature
in petitioner's mark is "KETSARAP" and the dominant feature in respondent's mark
is "PAPA BOY". Thus, the words "KETSARAP" and "PAPA BOY" in petitioner's and
respondent's respective marks are obviously different in sound, making "PAPA BOY
& DEVICE" even more distinct from petitioner's "PAPA KETSARAP" mark.35 chanrobleslaw
Using the holistic test, respondent further discusses the differences in the marks in
this wise:

Even the use of the holistic test x x x takes into consideration the entirety of the
marks in question [to] be considered in resolving confusing similarity. The
differences are again very obvious. Respondent's mark has (1) the word "lechon
sauce" printed inside a blue ribbon-like device which is illustrated below the word
"PAPA BOY"; (2) a prominent smiling hog-like character gesturing a thumbs-up sign
and wearing a Filipino hat and scarf stands beside the word "PAPA BOY"; and the
word "BARRIO FIESTA" conspicuously displayed above the said trademark which
leaves no doubt in the consumer's mind on the product that he or she is
purchasing. On the other hand, petitioner's mark is the word "PAPA" enclosed by a
cloud on top of the word "KETSARAP' enclosed by a geometrical figure.

xxxx

In the instant case, the respective marks are obviously different in color scheme,
logo, spelling, sound, meaning and connotation. Thus, yet again, under the holistic
test there can be no confusion or deception between these marks.

It also bears stressing that petitioner's "PAPA KETSARAP" mark covers "banana
catsup" while respondent's "PAPA BOY & DEVICE" covers "lechon sauce", thereby
obliterating any confusion of products of both marks as they travel different
channels of trade. If a consumer is in the market for banana catsup, he or she will
not buy lechon sauce and vice-versa. As a result, the margin of error in the
acquisition of one for the other is simply remote. Lechon sauce which is liver sauce
is distinct from catsup extracted/ made from banana fruit. The flavor and taste of a
lechon sauce are far from those of a banana catsup. Lechon sauce is sauce for
"lechon" while banana catsup is apparently catsup made from banana.36 chanrobleslaw

Respondent also contends that "PAPA BOY & DEVICE" mark is not confusingly
similar to petitioner's trademark "PAPA KETSARAP" in terms of appearance, sound,
spelling and meaning. The difference in nature, usage, taste and appearance of
products decreases the possibility of deception among buyers.37 chanroblesvirtuallawlibrary

Respondent alleges that since petitioner merely included banana catsup as its
product in its certificate, it cannot claim any further right to the mark "PAPA
KETSARAP" on products other than banana catsup. Respondent also alleges that
petitioner cannot raise "international notoriety of the mark" for the first time on
appeal and that there is no proof that petitioner's mark is internationally well-
known.38chanroblesvirtuallawlibrary

Furthermore, respondent argues that petitioner cannot claim exclusive ownership

over the use of the word "PAPA," a term of endearment for one's father.
Respondent points out that there are several other valid and active marks owned by
third parties which use the word "PAPA," even in classes of goods similar to those of
petitioner's. Respondent avers that petitioner's claim that its "PAPA" mark is an
arbitrary mark is belatedly raised in the instant petition, and cannot be allowed
because the "PAPA KETSARAP" mark would immediately bring the consuming public
to thinking that the product involved is catsup and the description of said catsup is
"masarap" (delicious) and due to the logical relation of the petitioner's mark to the
actual product, it being descriptive or generic, it is far from being arbitrary or
fanciful.39
chanroblesvirtuallawlibrary

Lastly, respondent claims that the Court of Appeals correctly ruled that
respondent's product cannot be confused as originating from the petitioner. Since it
clearly appears in the product label of the respondent that it is manufactured by
Barrio Fiesta, the public is dutifully informed of the identity of the lechon sauce
manufacturer. The Court of Appeals further took into account the fact that
petitioner's products have been in commercial use for decades.40 chanroblesvirtuallawlibrary

Petitioner, in its Reply41 to respondent's Comment, contends that respondent

cannot invoke a prior filing date for the "PAPA BOY" mark as against Petitioner's
"PAPA" and "PAPA BANANA CATSUP LABEL" marks, because the latter marks were
still registered when respondent applied for registration of its "PAPA BOY" mark.
Thus, the IPO-BLA and Director General correctly considered them in deciding
whether the "PAPA BOY" mark should be registered, using the "first to file" rule
under Section 123.1(d) of Republic Act No. 8293, or the Intellectual Property Code
(IP Code).

Petitioner reiterates its argument that the Court of Appeals erred in applying the
holistic test and that the proper test under the circumstances is the dominancy test,
which was correctly applied by the IPO-BLA and the Director General.42

THIS COURT'S RULING

The petition has merit. We find that the Court of Appeals erred in applying the
holistic test and in reversing and setting aside the decision of the IPO-BLA and that
of the IPO Director General, both of which rejected respondent's application for the
mark "PAPA BOY & DEVICE."

In Dermaline, Inc. v. Myra Pharmaceuticals, Inc.,43 we defined a trademark as "any

distinctive word, name, symbol, emblem, sign, or device, or any combination
thereof, adopted and used by a manufacturer or merchant on his goods to identify
and distinguish them from those manufactured, sold, or dealt by others." We held
that a trademark is "an intellectual property deserving protection by law."

The rights of the trademark owner are found in the Intellectual Property Code,
which provides:

Section 147. Rights Conferred. - 147.1. The owner of a registered mark shall

have the exclusive right to prevent all third parties not having the owner's consent
from using in the course of trade identical or similar signs or containers for goods or
services which are identical or similar to those in respect of which the trademark is
registered where such use would result in a likelihood of confusion. In case of the
use of an identical sign for identical goods or services, a likelihood of confusion shall
be presumed.

Section 168. Unfair Competition, Rights, Regulation and Remedies. -

168.1. A person who has identified in the mind of the public the goods he
manufactures or deals in, his business or services from those of others, whether or
not a registered mark is employed, has a property right in the goodwill of the said
goods, business or services so identified, which will be protected in the same
manner as other property rights.

The guideline for courts in determining likelihood of confusion is found in A.M. No.
10-3-10-SC, or the Rules of Procedure for Intellectual Property Rights Cases, Rule
18, which provides:

RULE 18

Evidence in Trademark Infringement and Unfair Competition Cases SECTION

1. Certificate of Registration. — A certificate of registration of a mark shall be prima
facie  evidence of:

a) the validity of the registration; b) the registrant's ownership of the mark; and

c) the registrant's exclusive right to use the same in connection with the goods or
services and those that are related thereto specified in the certificate.

xxxx

SECTION 3. Presumption of Likelihood of Confusion. — Likelihood of confusion shall

be presumed in case an identical sign or mark is used for identical goods or
services.

SECTION 4. Likelihood of Confusion in Other Cases. — In determining whether one

trademark is confusingly similar to or is a colorable imitation of another, the court
must consider the general impression of the ordinary purchaser, buying under the
normally prevalent conditions in trade and giving the attention such purchasers
usually give in buying that class of goods. Visual, aural, connotative comparisons
and overall impressions engendered by the marks in controversy as they are
encountered in the realities of the marketplace must be taken into account. Where
there are both similarities and differences in the marks, these must be weighed
against one another to see which predominates.

In determining likelihood of confusion between marks used on non-identical goods

or services, several factors may be taken into account, such as, but not limited to:

a) the strength of plaintiff s mark;

b) the degree of similarity between the plaintiffs and the defendant's marks;

c) the proximity of the products or services;

d) the likelihood that the plaintiff will bridge the gap;

e) evidence of actual confusion;

f) the defendant's good faith in adopting the mark;

g) the quality of defendant's product or service; and/or h) the sophistication of the

buyers.

"Colorable imitation" denotes such a close or ingenious imitation as to be calculated

to deceive ordinary persons, or such a resemblance to the original as to deceive an
ordinary purchaser giving such attention as a purchaser usually gives, as to cause
him to purchase the one supposing it to be the other.

SECTION 5. Determination of Similar and Dissimilar Goods or Services. — Goods or

services may not be considered as being similar or dissimilar to each other on the
ground that, in any registration or publication by the Office, they appear in different
classes of the Nice Classification.

In this case, the findings of fact of the highly technical agency, the Intellectual
Property Office, which has the expertise in this field, should have been given great
weight by the Court of Appeals. As we held in Berris Agricultural Co., Inc. v.
Abyadang44:

R.A. No. 8293 defines a "mark" as any visible sign capable of distinguishing the
goods (trademark) or services (service mark) of an enterprise and shall include a
stamped or marked container of goods. It also defines a "collective mark" as any
visible sign designated as such in the application for registration and capable of
distinguishing the origin or any other common characteristic, including the quality
of goods or services of different enterprises which use the sign under the control of
the registered owner of the collective mark.

On the other hand, R.A. No. 166 defines a "trademark" as any distinctive word,
name, symbol, emblem, sign, or device, or any combination thereof, adopted and
used by a manufacturer or merchant on his goods to identify and distinguish them
from those manufactured, sold, or dealt by another. A trademark, being a special
property, is afforded protection by law. But for one to enjoy this legal protection,
legal protection ownership of the trademark should rightly be established.

The ownership of a trademark is acquired by its registration and its actual use by
the manufacturer or distributor of the goods made available to the purchasing
public. Section 122 of R.A.. No. 8293 provides that the rights in a mark shall be
acquired by means of its valid registration with the IPO. A certificate of registration
of a mark, once issued, constitutes prima facie evidence of the validity of the
registration, of the registrant's ownership of the mark, and of the registrant's
exclusive right to use the same in connection with the goods or services and those
that are related thereto specified in the certificate. R.A. No. 8293, however,
requires the applicant for registration or the registrant to file a declaration of actual
use (DAU) of the mark, with evidence to that effect, within three (3) years from the
filing of the application for registration; otherwise, the application shall be refused
or the mark shall be removed from the register. In other words, the prima facie
presumption brought about by the registration of a mark may be challenged and
overcome, in an appropriate action, by proof of the nullity of the registration or of
non-use of the mark, except when excused. Moreover, the presumption may
likewise be defeated by evidence of prior use by another person, i.e., it will
controvert a claim of legal appropriation or of ownership based on registration by a
subsequent user. This is because a trademark is a creation of use and belongs to
one who first used it in trade or commerce.

The determination of priority of use of a mark is a question of fact. Adoption of the

mark alone does not suffice. One may make advertisements, issue circulars,
distribute price lists on certain goods, but these alone will not inure to the claim of
ownership of the mark until the goods bearing the mark are sold to the public in the
market. Accordingly, receipts, sales invoices, and testimonies of witnesses as
customers, or orders of buyers, best prove the actual use of a mark in trade and
commerce during a certain period of time.

xxxx

Verily, the protection of trademarks as intellectual property is intended not only to

preserve the goodwill and reputation of the business established on the goods
bearing the mark through actual use over a period of time, but also to safeguard
the public as consumers against confusion on these goods. On this matter of
particular concern, administrative agencies, such as the IPO, by reason of
their special knowledge and expertise over matters falling under their
jurisdiction, are in a better position to pass judgment thereon. Thus, their
findings of fact in that regard are generally accorded great respect, if not
finality by the courts, as long as they are supported by substantial
evidence, even if such evidence might not be overwhelming or even
preponderant. It is not the task of the appellate court to weigh once more
the evidence submitted before the administrative body and to substitute
its own judgment for that of the administrative agency in respect to
sufficiency of evidence. (Emphasis added, citations omitted.)

In trademark controversies, each case must be scrutinized according to its peculiar

circumstances, such that jurisprudential precedents should only be made to apply if
they are specifically in point.45 The cases discussed below are mentioned only for
purposes of lifting the applicable doctrines, laws, and concepts, but not for their
factual circumstances, because of the uniqueness of each case in controversies such
as this one.

There are two tests used in jurisprudence to determine likelihood of confusion,

namely the dominancy test used by the IPO, and the holistic test adopted by the
Court of Appeals. In Skechers, U.S.A., Inc. v. Inter Pacific Industrial Trading
Corp.,46 we held:

The essential element of infringement under R.A. No. 8293 is that the infringing
mark is likely to cause confusion. In determining similarity and likelihood of
confusion, jurisprudence has developed tests — the Dominancy Test and the
Holistic or Totality Test. The Dominancy Test focuses on the similarity of the
prevalent or dominant features of the competing trademarks that might cause
confusion, mistake, and deception in the mind of the purchasing public. Duplication
or imitation is not necessary; neither is it required that the mark sought to be
registered suggests an effort to imitate. Given more consideration are the aural and
visual impressions created by the marks on the buyers of goods, giving little weight
to factors like prices, quality, sales outlets, and market segments.

xxxx

Relative to the question on confusion of marks and trade names, jurisprudence has
noted two (2) types of confusion, viz.: (1) confusion of goods (product confusion),
where the ordinarily prudent purchaser would be induced to purchase one product
in the belief that he was purchasing the other; and (2) confusion of business
(source or origin confusion), where, although the goods of the parties are different,
the product, the mark of which registration is applied for by one party, is such as
might reasonably be assumed to originate with the registrant of an earlier product,
and the public would then be deceived either into that belief or into the belief that
there is some connection between the two parties, though inexistent.

Applying the Dominancy Test to the case at bar, this Court finds that the use of the
stylized "S" by respondent in its Strong rubber shoes infringes on the mark already
registered by petitioner with the IPO. While it is undisputed that petitioner's stylized
"S" is within an oval design, to this Court's mind, the dominant feature of the
trademark is the stylized "S," as it is precisely the stylized "S" which catches the
eye of the purchaser. Thus, even if respondent did not use an oval design, the mere
fact that it used the same stylized "S", the same being the dominant feature of
petitioner's trademark, already constitutes infringement under the Dominancy Test.

This Court cannot agree with the observation of the CA that the use of the letter "S"
could hardly be considered as highly identifiable to the products of petitioner alone.
The CA even supported its conclusion by stating that the letter "S" has been used in
so many existing trademarks, the most popular of which is the trademark "S"
enclosed by an inverted triangle, which the CA says is identifiable to Superman.
Such reasoning, however, misses the entire point, which is that respondent had
used a stylized "S," which is the same stylized "S" which petitioner has a registered
trademark for. The letter "S" used in the Superman logo, on the other hand, has a
block-like tip on the upper portion and a round elongated tip on the lower portion.
Accordingly, the comparison made by the CA of the letter "S" used in the Superman
trademark with petitioner's stylized "S" is not appropriate to the case at bar.
Furthermore, respondent did not simply use the letter "S," but it appears to this
Court that based on the font and the size of the lettering, the stylized "S" utilized
by respondent is the very same stylized "S" used by petitioner; a stylized "S" which
is unique and distinguishes petitioner's trademark. Indubitably, the likelihood of
confusion is present as purchasers will associate the respondent's use of the
stylized "S" as having been authorized by petitioner or that respondent's product is
connected with petitioner's business.

XXXX

While there may be dissimilarities between the appearances of the shoes, to this
Court's mind such dissimilarities do not outweigh the stark and blatant similarities
in their general features, x x x.

Based on the foregoing, this Court is at a loss as to how the RTC and the CA, in
applying the holistic test, ruled that there was no colorable imitation, when it
cannot be any more clear and apparent to this Court that there is colorable
imitation. The dissimilarities between the shoes are too trifling and frivolous that it
is indubitable that respondent's products will cause confusion and mistake in the
eyes of the public. Respondent's shoes may not be an exact replica of petitioner's
shoes, but the features and overall design are so similar and alike that confusion is
highly likely.

xxxx

Neither can the difference in price be a complete defense in trademark

infringement. In McDonald's Corporation v. L.C. Big Mak Burger, Inc., this Court
held:

Modern law recognizes that the protection to which the owner of a trademark is
entitled is not limited to guarding his goods or business from actual market
competition with identical or similar products of the parties, but extends to all cases
in which the use by a junior appropriator of a trade-mark or trade-name is likely to
lead to a confusion of source, as where prospective purchasers would be misled into
thinking that the complaining party has extended his business into the field (see
148 ALR 56 et seq; 53 Am. Jur. 576) or is in any way connected with the activities
of the infringer; or when it forestalls the normal potential expansion of his business
(v. 148 ALR 77, 84; 52 Am. Jur. 576, 577). x x x.

Indeed, the registered trademark owner may use its mark on the same or similar
products, in different segments of the market, and at different price levels
depending on variations of the products for specific segments of the market. The
purchasing public might be mistaken in thinking that petitioner had ventured into a
lower market segment such that it is not inconceivable for the public to think that
Strong or Strong Sport Trail might be associated or connected with petitioner's
brand, which scenario is plausible especially since both petitioner and respondent
manufacture rubber shoes.
Withal, the protection of trademarks as intellectual property is intended not only to
preserve the goodwill and reputation of the business established on the goods
bearing the mark through actual use over a period of time, but also to safeguard
the public as consumers against confusion on these goods. While respondent's
shoes contain some dissimilarities with petitioner's shoes, this Court cannot close
its eye to the fact that for all intents and purpose, respondent had deliberately
attempted to copy petitioner's mark and overall design and features of the shoes.
Let it be remembered, that defendants in cases of infringement do not normally
copy but only make colorable changes. The most successful form of copying is to
employ enough points of similarity to confuse the public, with enough points of
difference to confuse the courts. (Citations omitted.)

The Court discussed the concept of confusion of business in the case of Societe Des
Produits Nestle, S.A. v. Dy, Jr.,47 as quoted below:

Among the elements, the element of likelihood of confusion is the gravamen of

trademark infringement. There are two types of confusion in trademark
infringement: confusion of goods and confusion of business. In Sterling Products
International, Inc. v. Farbenfabriken Bayer Aktiengesellschaft, the Court
distinguished the two types of confusion:

Callman notes two types of confusion. The first is the confusion of goods "in which
event the ordinarily prudent purchaser would be induced to purchase one product in
the belief that he was purchasing the other." In which case, "defendant's goods are
then bought as the plaintiffs, and the poorer quality of the former reflects adversely
on the plaintiffs reputation." The other is the confusion of business: "Here though
the goods of the parties are different, the defendant's product is such as might
reasonably be assumed to originate with the plaintiff, and the public would then be
deceived either into that belief or into the belief that there is some connection
between the plaintiff and defendant which, in fact, does not exist."

There are two tests to determine likelihood of confusion: the dominancy test and
holistic test. The dominancy test focuses on the similarity of the main, prevalent or
essential features of the competing trademarks that might cause confusion.
Infringement takes place when the competing trademark contains the essential
features of another. Imitation or an effort to imitate is unnecessary. The question is
whether the use of the marks is likely to cause confusion or deceive purchasers.

xxxx

In cases involving trademark infringement, no set of rules can be deduced. Each

case must be decided on its own merits. Jurisprudential precedents must be studied
in the light of the facts of each particular case. In McDonald's Corporation v.
MacJoy Fastfood Corporation, the Court held:

In trademark cases, particularly in ascertaining whether one trademark is

confusingly similar to another, no set rules can be deduced because each case must
be decided on its merits. In such cases, even more than in any other litigation,
precedent must be studied in the light of the facts of the particular case. That is the
reason why in trademark cases, jurisprudential precedents should be applied only
to a case if they are specifically in point.

In the light of the facts of the present case, the Court holds that the dominancy test
is applicable. In recent cases with similar factual milieus, the Court has consistently
applied the dominancy test, x x x.

xxxx

In McDonald's Corporation v. MacJoy Fastfood Corporation, the Court applied the

dominancy test in holding that "MACJOY" is confusingly similar to "MCDONALD'S."
The Court held:

While we agree with the CA's detailed enumeration of differences between the two
(2) competing trademarks herein involved, we believe that the holistic test is not
the one applicable in this case, the dominancy test being the one more suitable. In
recent cases with a similar factual milieu as here, the Court has consistently used
and applied the dominancy test in determining confusing similarity or likelihood of
confusion between competing trademarks.

xxxx

Applying the dominancy test to the instant case, the Court finds that herein
petitioner's "MCDONALD'S" and respondent's "MACJOY" marks are confusingly
similar with each other that an ordinary purchaser can conclude an association or
relation between the marks.

To begin with, both marks use the corporate "M" design logo and the prefixes "Me"
and/or "Mac" as dominant features, x x x.

For sure, it is the prefix "Me," and abbreviation of "Mac," which visually and aurally
catches the attention of the consuming public. Verily, the word "MACJOY" attracts
attention the same way as did "McDonalds," "Mac Fries," "Me Spaghetti," "McDo,"
"Big Mac" and the rest of the MCDONALD'S marks which all use the prefixes Me
and/or Mac.

Besides and most importantly, both trademarks are used in the sale of fastfood
products. Indisputably, the respondent's trademark application for the "MACJOY &
DEVICE" trademark covers goods under Classes 29 and 30 of the International
Classification of Goods, namely, fried chicken, chicken barbeque, burgers, fries,
spaghetti, etc. Likewise, the petitioner's trademark registration for the
MCDONALD'S marks in the Philippines covers goods which are similar if not identical
to those covered by the respondent's application.

In McDonald's Corporation v. L.C. Big Mak Burger, Inc., the Court applied the
dominancy test in holding that "BIG MAK" is confusingly similar to "BIG MAC." The
Court held:

This Court x x x has relied on the dominancy test rather than the holistic test. The
dominancy test considers the dominant features in the competing marks in
determining whether they are confusingly similar. Under the dominancy test, courts
give greater weight to the similarity of the appearance of the product arising from
the adoption of the dominant features of the registered mark, disregarding minor
differences. Courts will consider more the aural and visual impressions created by
the marks in the public mind, giving little weight to factors like prices, quality, sales
outlets and market segments.

Thus, in the 1954 case of Co Tiong Sa v. Director of Patents, the Court ruled:

x x x It has been consistently held that the question of infringement of a trademark

is to be determined by the test of dominancy. Similarity in size, form and color,
while relevant, is not conclusive. If the competing trademark contains the main or
essential or dominant features of another, and confusion and deception is likely to
result, infringement takes place. Duplication or imitation is not necessary; nor is it
necessary that the infringing label should suggest an effort to imitate. (G. Heilman
Brewing Co. vs. Independent Brewing Co., 191 F., 489, 495, citing Eagle White
Lead Co. vs. Pflugh (CC) 180 Fed. 579). The question at issue in cases of
infringement of trademarks is whether the use of the marks involved would be
likely to cause confusion or mistakes in the mind of the public or deceive
purchasers. (Auburn Rubber Corporation vs. Honover Rubber Co., 107 F. 2d 588; x
x x)

xxxx

The test of dominancy is now explicitly incorporated into law in Section 155.1 of the
Intellectual Property Code which defines infringement as the "colorable imitation of
a registered mark x x x or a dominant feature  thereof."

Applying the dominancy test, the Court finds that respondents' use of the "Big Mak"
mark results in likelihood of confusion. First, "Big Mak" sounds exactly the same as
"Big Mac." Second, the first word in "Big Mak" is exactly the same as the first word
in "Big Mac." Third, the first two letters in "Mak" are the same as the first two
letters in "Mac." Fourth, the last letter "Mak" while a "k" sounds the same as "c"
when the word "Mak" is pronounced. Fifth, in Filipino, the letter "k" replaces "c" in
spelling, thus "Caloocan" is spelled "Kalookan."

In Societe Des Produits Nestle, S.A. v. Court of Appeals,  the Court applied the
dominancy test in holding that "FLAVOR MASTER" is confusingly similar to "MASTER
ROAST" and "MASTER BLEND." The Court held:

While this Court agrees with the Court of Appeals' detailed enumeration of
differences between the respective trademarks of the two coffee products, this
Court cannot agree that totality test is the one applicable in this case. Rather, this
Court believes that the dominancy test is more suitable to this case in light of its
peculiar factual milieu.

Moreover, the totality or holistic test is contrary to the elementary postulate of the
law on trademarks and unfair competition that confusing similarity is to be
determined on the basis of visual, aural, connotative comparisons and overall
impressions engendered by the marks in controversy as they are encountered in
the realities of the marketplace. The totality or holistic test only relies on visual
comparison between two trademarks whereas the dominancy test relies not only on
the visual but also on the aural and connotative comparisons and overall
impressions between the two trademarks.

For this reason, this Court agrees with the BPTTT when it applied the test of
dominancy and held that:

xxxx

The scope of protection afforded to registered trademark owners is not

limited to protection from infringers with identical goods. The scope of
protection extends to protection from infringers with related goods, and to
market areas that are the normal expansion of business of the registered
trademark owners. Section 138 of R.A. No. 8293 states:

Certificates of Registration. — A certificate of registration of a mark shall be prima

facie evidence of validity of the registration, the registrant's ownership of the mark,
and of the registrant's exclusive right to use the same in connection with the goods
or services and those that are related thereto specified in the certificate, x x x.

In  Mighty Corporation v. E. & J. Gallo Winery, the Court held that, "Non-competing
goods may be those which, though they are not in actual competition, are so
related to each other that it can reasonably be assumed that they originate from
one manufacturer, in which case, confusion of business can arise out of the use of
similar marks." In that case, the Court enumerated factors in determining whether
goods are related: (1) classification of the goods; (2) nature of the goods; (3)
descriptive properties, physical attributes or essential characteristics of the goods,
with reference to their form, composition, texture or quality; and (4) style of
distribution and marketing of the goods, including how the goods are displayed and
sold.

xxxx

xxx. However, as the registered owner of the "NAN" mark, Nestle should be
free to use its mark on similar products, in different segments of the
market, and at different price levels. In McDonald's Corporation v. L.C. Big Mak
Burger, Inc., the Court held that the scope of protection afforded to registered
trademark owners extends to market areas that are the normal expansion of
business:

xxxx

Even respondent's use of the "Big Mak" mark on non-hamburger food products
cannot excuse their infringement of petitioners' registered mark, otherwise
registered marks will lose their protection under the law.

The registered trademark owner may use his mark on the same or similar
products, in different segments of the market, and at different price levels
depending on variations of the products for specific segments of the
market. The Court has recognized that the registered trademark owner
enjoys protection in product and market areas that are the normal
potential expansion of his business. Thus, the Court has declared:

Modern law recognizes that the protection to which the owner of a trademark is
entitled is not limited to guarding his goods or business from actual market
competition with identical or similar products of the parties, but extends to all cases
in which the use by a junior appropriator of a trade-mark or trade-name is likely to
lead to a confusion of source, as where prospective purchasers would be misled into
thinking that the complaining party has extended his business into the field (see
148 ALR 56 et sq; 53 Am. Jur. 576) or is in any way connected with the activities of
the infringer; or when it forestalls the normal potential expansion of his business
(v. 148 ALR, 77, 84; 52 Am. Jur. 576, 577). (Emphases supplied, citations
omitted.)

Again, this Court discussed the dominancy test and confusion of business
in Dermaline, Inc. v. Myra Pharmaceuticals, Inc.,48 and we quote:

The Dominancy Test focuses on the similarity of the prevalent features of the
competing trademarks that might cause confusion or deception. It is applied when
the trademark sought to be registered contains the main, essential and dominant
features of the earlier registered trademark, and confusion or deception is likely to
result. Duplication or imitation is not even required; neither is it necessary that the
label of the applied mark for registration should suggest an effort to imitate. The
important issue is whether the use of the marks involved would likely cause
confusion or mistake in the mind of or deceive the ordinary purchaser, or one who
is accustomed to buy, and therefore to some extent familiar with, the goods in
question. Given greater consideration are the aural and visual impressions created
by the marks in the public mind, giving little weight to factors like prices, quality,
sales outlets, and market segments. The test of dominancy is now explicitly
incorporated into law in Section 155.1 of R.A. No. 8293 which provides —

155.1. Use in commerce any reproduction, counterfeit, copy, or colorable

imitation of a registered mark or the same container or a dominant
feature thereof in connection with the sale, offering for sale, distribution,
advertising of any goods or services including other preparatory steps necessary to
carry out the sale of any goods or services on or in connection with which such use
is likely to cause confusion, or to cause mistake, or to deceive x x x.

xxxx

Relative to the question on confusion of marks and trade names, jurisprudence has
noted two (2) types of confusion, viz.: (1) confusion of goods (product confusion),
where the ordinarily prudent purchaser would be induced to purchase one product
in the belief that he was purchasing the other; and (2) confusion of business
(source or origin confusion), where, although the goods of the parties are different,
the product, the mark of which registration is applied for by one party, is such as
might reasonably be assumed to originate with the registrant of an earlier product,
and the public would then be deceived either into that belief or into the belief that
there is some connection between the two parties, though inexistent.

xxxx

We agree with the findings of the IPO. As correctly applied by the IPO in this case,
while there are no set rules that can be deduced as what constitutes a dominant
feature with respect to trademarks applied for registration; usually, what are taken
into account are signs, color, design, peculiar shape or name, or some special,
easily remembered earmarks of the brand that readily attracts and catches the
attention of the ordinary consumer.

xxxx

Further, Dermaline's stance that its product belongs to a separate and different
classification from Myra's products with the registered trademark does not eradicate
the possibility of mistake on the part of the purchasing public to associate the
former with the latter, especially considering that both classifications pertain to
treatments for the skin.

Indeed, the registered trademark owner may use its mark on the same or similar
products, in different segments of the market, and at different price levels
depending on variations of the products for specific segments of the market. The
Court is cognizant that the registered trademark owner enjoys protection in product
and market areas that are the normal potential expansion of his business. Thus, we
have held —

Modern law recognizes that the protection to which the owner of a trademark is
entitled is not limited to guarding his goods or business from actual market
competition with identical or similar products of the parties, but extends to all cases
in which the use by a junior appropriator of a trade-mark or trade-name is likely to
lead to a confusion of source, as where prospective purchasers would be
misled into thinking that the complaining party has extended his business
into the field (see 148 ALR 56 et seq; 53 Am Jur. 576) or is in any way connected
with the activities of the infringer; or when it forestalls the normal potential
expansion of his business (v. 148 ALR 77, 84; 52 Am. Jur. 576, 577).
Thus, the public may mistakenly think that Dermaline is connected to or associated
with Myra, such that, considering the current proliferation of health and beauty
products in the market, the purchasers would likely be misled that Myra has already
expanded its business through Dermaline from merely carrying pharmaceutical
topical applications for the skin to health and beauty services.

Verily, when one applies for the registration of a trademark or label which is almost
the same or that very closely resembles one already used and registered by
another, the application should be rejected and dismissed outright, even without
any opposition on the part of the owner and user of a previously registered label or
trademark. This is intended not only to avoid confusion on the part of the public,
but also to protect an already used and registered trademark and an established
goodwill. (Citations omitted.)

Section 123. l(d) of the IP Code provides:

A mark cannot be registered if it:

xxxx

(d) Is identical with a registered mark belonging to a different proprietor or a mark

with an earlier filing or priority date, in respect of:

i. The same goods or services, or

ii. Closely related goods or services, or

iii. If it nearly resembles such a mark as to be likely to deceive or cause

confusion[.]

A scrutiny of petitioner's and respondent's respective marks would show that the
IPO-BLA and the IPO Director General correctly found the word "PAPA" as the
dominant feature of petitioner's mark "PAPA KETSARAP." Contrary to respondent's
contention, "KETSARAP" cannot be the dominant feature of the mark as it is merely
descriptive of the product. Furthermore, it is the "PAPA" mark that has been in
commercial use for decades and has established awareness and goodwill among
consumers.

We likewise agree with the IPO-BLA that the word "PAPA" is also the dominant
feature of respondent's "PAPA BOY & DEVICE" mark subject of the application, such
that "the word 'PAPA' is written on top of and before the other words such that it is
the first word/figure that catches the eyes."49 Furthermore, as the IPO Director
General put it, the part of respondent's mark which appears prominently to the
eyes and ears is the phrase "PAPA BOY" and that is what a purchaser of
respondent's product would immediately recall, not the smiling hog.
We quote the relevant portion of the IPO-BLA decision on this point below:

A careful examination of Opposer's and Respondent-applicant's respective marks

shows that the word "PAPA" is the dominant feature: In Opposer's marks, the word
"PAPA" is either the mark by itself or the predominant word considering its stylized
font and the conspicuous placement of the word "PAPA" before the other words. In
Respondent-applicant's mark, the word "PAPA" is written on top of and before the
other words such that it is the first word figure that catches the eyes. The visual
and aural impressions created by such dominant word "PAPA" at the least is that
the respective goods of the parties originated from the other, or that one party has
permitted or has been given license to the other to use the word "PAPA" for the
other party's product, or that there is a relation/connection between the two parties
when, in fact, there is none. This is especially true considering that the products of
both parties belong to the same class and are closely related: Catsup and lechon
sauce or liver sauce are both gravy-like condiments used to spice up dishes. Thus,
confusion of goods and of business may likely result.

Under the Dominancy Test, the dominant features of the competing marks are
considered in determining whether these competing marks are confusingly similar.
Greater weight is given to the similarity of the appearance of the products arising
from the adoption of the dominant features of the registered mark, disregarding
minor differences. The visual, aural, connotative, and overall comparisons and
impressions engendered by the marks in controversy as they are encountered in
the realities of the marketplace are the main considerations (McDonald's
Corporation, et al., v. L. C. Big Mak Burger, Inc., et al., G. R. No. 143993, August
18, 2004; Societe Des Produits Nestle, S. A." et al. v. Court of Appeals, et al., G. R.
No. 112012, April 4, 2001). If the competing trademark contains the main or
essential or dominant features of another, and confusion and deception is likely to
result, infringement takes place. (Lim Hoa v. Director of Patents, 100 Phil. 214
[1956]); Co Tiong Sa v. Director of Patents, et al., G. R. No. L-5378, May 24,
1954). Duplication or imitation is not necessary; nor is it necessary that the
infringing label should suggest an effort to imitate (Lim Hoa v. Director of Patents,
supra, and Co Liong Sa v. Director of Patents, supra). Actual confusion is not
required: Only likelihood of confusion on the part of the buying public is necessary
so as to render two marks confusingly similar so as to deny the registration of the
junior mark (Sterling Products International, Inc. v. Farbenfabriken Bayer
Aktiengesellschaft, 137 Phil. 838 [1969]).

As to the first issue of whether PAPA BOY is confusingly similar to Opposer's PAPA
mark, this Bureau rules in the affirmative.

The records bear the following:

1. Registration No. 32416 issued for the mark "PAPA" under Class 29 goods was
deemed expired as of February 11, 2004 (Exhibit "A" attached to the VERIFIED
NOTICE OF OPPOSITION). Application Serial No. 4- 2005-010788 was filed on
October 28, 2005 for the same mark "PAPA" for Class 30 goods and Registration
No. 42005010788 was issued on March 19,2007;

2. Opposer was issued for the mark "PAPA BANANA CATSUP LABEL" on August 11,
1983 Registration No. SR-6282 for Class 30 goods in the Supplemental Register,
which registration expired in 2003. Application Serial No. 4-2006-012364 was filed
for the mark "PAPA LABEL DESIGN" for Class 30 goods on November 15, 2006, and
Registration No. 42006012364 was issued on April 30, 2007; and

3. Lastly, Registration No. 34681 for the mark "PAPA KETSARAP" for Class 30 goods
was issued on August 23, 1985 and was renewed on August 23, 2005.

Though Respondent-applicant was first to file the subject application on April 04,
2002 vis-a-vis the mark "PAPA" the filing date of which is reckoned on October 28,
2005, and the mark "PAPA LABEL DESIGN" the filing date of which is reckoned on
November 15, 2006, Opposer was able to secure a registration for the mark "PAPA
KETSARAP" on August 23, 1985 considering that Opposer was the prior registrant
and that its renewal application timely filed on August 23, 2005.

xxxx

Pursuant to [Section 123.l(d) of the IP Code], the application for registration of the
subject mark cannot be allowed considering that Opposer was earlier registrant of
the marks PAPA and PAPA KETSARAP which registrations were timely renewed upon
its expiration. Respondent-applicant's mark "PAPA BOY & DEVICE" is confusingly
similar to Opposer's mark "PAPA KETSARAP" and is applied to goods that are
related to Opposer's goods, but Opposer's mark "PAPA KETSARAP" was registered
on August 23, 1985 per Certificate of Registration No. 34681, which registration
was renewed for a period of 10 years counted from August 23, 2005 per Certificate
of Renewal of Registration No. 34681 issued on August 23, 2005. To repeat,
Opposer has already registered a mark which Respondent-applicant's mark nearly
resembles as to likely deceive or cause confusion as to origin and which is applied
to goods to which respondent-applicant's goods under Class 30 are closely related.

Section 138 of the IP Code provides that a certificate of registration of a mark

is prima facie  evidence of the validity of the registration, the registrant's ownership
of the mark, and of the registrant's exclusive right to use the same in connection
with the goods and those that are related thereto specified in the certificate.

We agree that respondent's mark cannot be registered. Respondent's mark is

related to a product, lechon sauce, an everyday all-purpose condiment and sauce,
that is not subjected to great scrutiny and care by the casual purchaser, who knows
from regular visits to the grocery store under what aisle to find it, in which bottle it
is contained, and approximately how much it costs. Since petitioner's product,
catsup, is also a household product found on the same grocery aisle, in similar
packaging, the public could think that petitioner had expanded its product mix to
include lechon sauce, and that the "PAPA BOY" lechon sauce is now part of the
"PAPA" family of sauces, which is not unlikely considering the nature of business
that petitioner is in. Thus, if allowed registration, confusion of business may set in,
and petitioner's hard-earned goodwill may be associated to the newer product
introduced by respondent, all because of the use of the dominant feature of
petitioner's mark on respondent's mark, which is the word "PAPA." The words
"Barrio Fiesta" are not included in the mark, and although printed on the label of
respondent's lechon sauce packaging, still do not remove the impression that "PAPA
BOY" is a product owned by the manufacturer of "PAPA" catsup, by virtue of the use
of the dominant feature. It is possible that petitioner could expand its business to
include lechon sauce, and that would be well within petitioner's rights, but the
existence of a "PAPA BOY" lechon sauce would already eliminate this possibility and
deprive petitioner of its rights as an owner of a valid mark included in the
Intellectual Property Code.

The Court of Appeals likewise erred in finding that "PAPA," being a common term of
endearment for one's father, is a word over which petitioner could not claim
exclusive use and ownership. The Merriam-Webster dictionary defines "Papa"
simply as "a person's father." True, a person's father has no logical connection with
catsup products, and that precisely makes "PAPA" as an arbitrary mark capable of
being registered, as it is distinctive, coming from a family name that started the
brand several decades ago. What was registered was not the word "Papa" as
defined in the dictionary, but the word "Papa" as the last name of the original
owner of the brand. In fact, being part of several of petitioner's marks, there is no
question that the IPO has found "PAPA" to be a registrable mark.

Respondent had an infinite field of words and combinations of words to choose from
to coin a mark for its lechon sauce. While its claim as to the origin of the term
"PAPA BOY" is plausible, it is not a strong enough claim to overrule the rights of the
owner of an existing and valid mark. Furthermore, this Court cannot equitably allow
respondent to profit by the name and reputation carefully built by petitioner without
running afoul of the basic demands of fair play.51

WHEREFORE, we hereby GRANT the petition. We SET ASIDE the June 23, 2011

Decision and the October 4, 2011 Resolution of the Court of Appeals in CA-G.R. SP
No. 107570, and REINSTATE the March 26, 2008 Decision of the Bureau of Legal
Affairs of the Intellectual Property Office (IPO-BLA) and the January 29,
2009 Decision of the Director General of the IPO.

SO ORDERED.

Sereno, C.J., (Chairperson), Bersamin, Perlas-Bernabe, and Jardeleza, JJ., concur.

Endnotes:

1
Rollo, pp. 49-62; penned by Associate Justice Franchito N. Diamante with
Associate Justices Josefma Guevara-Salonga and Mariflor P. Punzalan Castillo
concurring.

2
 Id. at 64-65.
3
 CA rollo, pp. 234-246.

4
 Id. at 34-44.

5
 In its Certificate of Filing of the Articles and Plan of Merger, it is stated that
NUTRI-ASIA, INC. is the "Surviving Corporation" and UFC PHILIPPINES, INC. is the
"Absorbed Corporation" and that "the entire assets and liabilities of UFC
PHILIPPINES, INC. will be transferred to and absorbed by NUTRI-ASIA, INC." (Rollo,
p. 66.)

6
 In its Amended Articles of Incorporation, it is stated that Nutri-Asia, Inc. was
formed to "engage in, operate, conduct and maintain the business of
manufacturing, importing, exporting, buying, selling, distributing or otherwise
dealing in, at wholesale, food products, such as but not limited to food sauces and
condiments which are banana and tomato-based, vinegar, fish sauce, convenience
meals and foodservice products and brewed soy sauce." (Rollo, p. 84.)

7
 CA rollo, p. 46.

8
 Id. at 235-238.

9
Rollo, pp. 14-15.

10
 CA  rollo, pp. 238-242.

11
 Id. at 242

12
 Id. at 243

13
 Id.

14
 Id.
15
 Id. at 246.

16
 Id. at 44.

17
 Rollo, p. 53.

18
 Id. at 55-56.

19
 Id. at 59-61.

20
 Id. at 22.

21
 Id. at 22.
22
 Id. at 24.

23
 Id. at 26.

24
 117 Phil. 779(1963).

25
Rollo, pp. 27-28.

26
 Id. at 37-38.

27
 Id. at 39.

28
 Id. at 41.

29
 Id. at 43.

30
 Id. at 106-136.

31
 Id. at 108.

32
 Id. at 108-109.

33
 Id. at 110.

34
 Id. at 115.

35
 Id. at 114-117.

36
 Id. at 117-118.

37
 Id. at 118-120.

38
 Id. at 120-123.
39
 Id. at 127-128.

40
 Id. at 128.

4)
 Id. at 143-168.

42
 Id. at 147.

43
 642 Phil. 503, 510-511 (2010).

44
 647 Phil. 517, 525-533(2010).

45
 Dermaline, Inc. v. Myra Pharmaceuticals, Inc., supra note 43 at 511.
46
 662 Phil. 11, 19-24(2011).

47
 641 Phil. 345,358-367(2010).

48
 Supra note 43 at 511-515.

49
 CA rollo, p. 244.

50
 Id. at 244-246.

51
Coffee Partners, Inc. v. San Francisco Coffee & Roastery, Inc., 628 Phil. 13
(2010).